| Estate of Gail Radvin v City of New York |
| 2014 NY Slip Op 05302 [119 AD3d 730] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Estate of Gail Radvin et al.,Respondents-Appellants, v City of New York et al.,Appellants-Respondents. |
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers,Amy G. London, and Jonathan David Moran of counsel), forappellants-respondents.
Warren S. Hecht, Forest Hills, N.Y., for respondents-appellants.
In an action, inter alia, to recover damages for wrongful death, etc., the defendantsappeal, as limited by their brief, from so much of an order of the Supreme Court, QueensCounty (Flug, J.), entered December 26, 2012, as denied that branch of their motionwhich was, in effect, pursuant to CPLR 3211 (a) (7) to dismiss the first, fourth, and fifthcauses of action in the amended complaint, and the plaintiffs cross-appeal, as limited bytheir brief, from so much of the same order as granted that branch of the defendants'motion which was, in effect, pursuant to CPLR 3211 (a) (7) to dismiss the second andthird causes of action in the amended complaint.
Ordered that the order is reversed insofar as appealed from, on the law, and thatbranch of the defendants' motion which was, in effect, pursuant to CPLR 3211 (a) (7) todismiss the first, fourth, and fifth causes of action in the amended complaint is granted;and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the defendants.
On December 27, 2010, Gail Radvin (hereinafter the decedent) was having difficultybreathing and her daughters, Faith Radvin and Robin Martucci, made repeated telephonecalls to the 911 emergency number for an ambulance. At the time, the decedent was inFaith Radvin's apartment. Initially, a 911 operator could not locate an ambulance torespond to the call as a result of recent snowfall that was blocking the streets. RobinMartucci was twice told that "there was nothing available in the area." Eventually, anambulance was located and the 911 operator indicated to the decedent's daughters thatthe ambulance would be there "as fast as they can." An ambulance with emergencyservices personnel subsequently arrived and took the decedent to the hospital, where shewas pronounced dead a short time later.
Thereafter, the decedent's daughters, individually and as coexecutors of thedecedent's estate (hereinafter together the plaintiffs), commenced this action to recoverdamages for wrongful death against the defendants City of New York, City of New YorkSanitation Department, and New York City Fire Department (hereinafter collectively thedefendants). The first and fourth causes of action allege that the defendants werenegligent in responding to the plaintiffs' 911 call. [*2]Thesecond and third causes of action allege that the defendants failed to prepare for, andrespond to, the snowstorm. The fifth cause of action asserts a derivative claim to recoverdamages for, among other things, loss of services.
The defendants moved, in effect, to dismiss the amended complaint pursuant toCPLR 3211 (a). In the order appealed from, the Supreme Court granted the defendants'motion to the extent that it directed the dismissal, pursuant to CPLR 3211 (a) (7), of thesecond and third causes of action in the amended complaint. The defendants appeal andthe plaintiffs cross-appeal.
As a general rule, "a municipality may not be held liable to a person injured by thebreach of a duty owed to the general public, such as a duty to provide police protection,fire protection or ambulance services" (Etienne v New York City Police Dept., 37 AD3d 647, 649[2007]). When a negligence cause of action is asserted against a municipality, and themunicipality's actions are proprietary in nature, the municipality is subject to suit underthe ordinary rules of negligence applicable to nongovernmental parties (see Applewhite v Accuhealth,Inc., 21 NY3d 420, 425 [2013]; Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428,446-447 [2011]). If it is determined that a municipality was exercising a governmentalfunction, a municipality may not be held liable unless it owed a "special duty" to theinjured party (see Applewhite v Accuhealth, Inc., 21 NY3d at 426; Valdez v City of New York, 18NY3d 69, 75 [2011]; Kupferstein v City of New York, 101 AD3d 952, 953[2012]). A "special duty" is "a duty to exercise reasonable care toward the plaintiff," andis "born of a special relationship between the plaintiff and the governmental entity" (Flagstar Bank, FSB v State of NewYork, 114 AD3d 138, 143 [2013], quoting Pelaez v Seide, 2 NY3d 186, 189, 198-199 [2004]).Insofar as relevant in this case, to establish a special relationship against a municipalitywhich was exercising a governmental function, a plaintiff must show: "(1) an assumptionby the municipality, through promises or actions, of an affirmative duty to act on behalfof the party who was injured; (2) knowledge on the part of the municipality's agents thatinaction could lead to harm; (3) some form of direct contact between the municipality'sagents and the injured party; and (4) that party's justifiable reliance on the municipality'saffirmative undertaking" (Cuffy v City of New York, 69 NY2d 255, 260 [1987];see Valdez v City of New York, 18 NY3d at 80).
Here, the Supreme Court erred in denying that branch of the defendants' motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the causes of action alleging that thedefendants were negligent in responding to the plaintiffs' 911 call. On a motion todismiss pursuant to CPLR 3211 (a) (7), the complaint is to be afforded a liberalconstruction (see CPLR 3026). The facts alleged are presumed to be true, theplaintiff is afforded the benefit of every favorable inference, and the court is to determineonly whether the facts as alleged fit within any cognizable legal theory (see Leon vMartinez, 84 NY2d 83, 87 [1994]; Thomas v LaSalle Bank N.A., 79 AD3d 1015, 1017[2010]).
A municipal emergency response system is "a classic governmental, rather thanproprietary, function" (Applewhite v Accuhealth, Inc., 21 NY3d at 430, quotingValdez v City of New York, 18 NY3d at 75). Contrary to the plaintiffs'contentions, the amended complaint fails to allege any facts tending to show that therewas any "justifiable reliance" on any promise made to the decedent by the defendants.Accordingly, the amended complaint fails to state facts from which it could be found thatthere was a special relationship between the decedent and the defendants and, therefore,the amended complaint does not state a viable cause of action against the defendantsbased upon their alleged negligence in responding to the plaintiffs' 911 call (see Freeman v City of NewYork, 111 AD3d 780, 782 [2013]; cf. Applewhite v Accuhealth, Inc., 21NY3d at 431).
Further, the Supreme Court properly granted that branch of the defendants' motionwhich was, in effect, pursuant to CPLR 3211 (a) (7) to dismiss the second and thirdcauses of action in the amended complaint alleging that the defendants failed to preparefor, and respond to, the snowstorm. A municipality is obligated to maintain the streetsand highways within its jurisdiction in a reasonably safe condition for travel (seeLopes v Rostad, 45 NY2d 617, 624 [1978]; Mazzella v City of New York, 72 AD3d 755 [2010];Gonzalez v City of New York, 148 AD2d 668 [1989]). "[A] municipality will bedeemed to have been engaged in a governmental function when its acts are 'undertakenfor the protection and safety of the public pursuant to the general policepowers' " (Applewhite v Accuhealth, Inc., 21 NY3d at 425, quotingSebastian v State of New York, 93 NY2d 790, 793 [1999] [internal quotation[*3]marks omitted]). Under the circumstances, thedefendants' snow removal operation on the public streets was a traditionallygovernmental function, rather than a proprietary function (see Freeman v City of NewYork, 111 AD3d at 782; cf. Wittorf v City of New York, 23 NY3d 473 [2014]; McGowan v State of New York, 41 AD3d 670 [2007];Zuckerman v State of New York, 209 AD2d 510 [1994]; Pappo v State ofNew York, 233 AD2d 379 [1996]). Moreover, the second and third causes of actionfailed to sufficiently allege the existence of a special relationship between the decedentand the defendants (see Freeman v City of New York, 111 AD3d at 782).
In light of the foregoing, the Supreme Court should have granted those branches ofthe defendants' motion which were, in effect, pursuant to CPLR 3211 (a) (7) to dismissthe first, fourth, and fifth causes of action in the amended complaint. Eng, P.J.,Leventhal, Lott and Roman, JJ., concur. [Prior Case History: 38 Misc 3d821.]